Clever Use of the Rules Can Make the Most of Your Uninsured/Underinsured Motorist Arbitration

Clever Use of the Rules Can Make the Most of Your Uninsured/Underinsured Motorist Arbitration

Los Angeles personal injury attorney, Barry P. Goldberg, is recognized as the “go to” expert on all things Uninsured and Underinsured Motorist. In fact, other lawyers frequently contact him on questions about securing the arbitration in the first place. However, very little thought is paid to actually maximizing the opportunities of the arbitration itself. This article suggests some very practical steps that should be taken at the outset to ensure that the arbitration lives up to its purpose—to provide a prompt and reasonable alternative to regular or standard litigation.

I cannot take full credit for the following suggestions. Believe it or not, these rules and guidelines were first proposed to me by insurance counsel. After researching the proposal (I was very suspicious), I realized that they made perfect sense and would actually provide a unique benefit to claimants’ counsel. On the other hand, insurance counsel liked the rules because it made the arbitration itself very predictable. It would be crystal clear what evidence would be presented and when it would be disclosed (insurance counsel hate surprises!) In fact, without an agreement in place, no two arbitrations are the same. Some arbitrators follow rules of evidence and require pre-arbitration disclosures and some do not. Many arbitrators will let all evidence in and they temper that ruling with the phrase “it will go to the weight” of the evidence. This is neither organized nor fair.

Accordingly, I always recommend that the first letter to opposing counsel secure an agreement that that the proceedings will be governed by Code of Civil Procedure §1282, Insurance Code §11580.2 and California Rules of Court, Rule 3.823. Acceptance of these rules by both parties will provide for an orderly and predictable sequence up to and including the arbitration. If the request does not meet with immediate traction, perhaps a conference call with the arbitrator to obtain an agreement to use these rules is in order. With these rules, you can schedule everything you need to do for the arbitration just like you were going to a trial.

For example, Code of Civil Procedure § 1282.2(a)(2)(A) permits either party to demand in writing that the other party provide a list of witnesses it intends to call designating which witnesses will be called as experts and a list of documents it intends to introduce at the hearing. The demand shall be served within 15 days of receipt of the notice of hearing. If an insured plans to utilize this process, I recommend serving the notice of hearing on behalf of the arbitrator.

Remember, the disclosure obligation is bilateral and the responses shall be served either in person or by certified mail within 15 days after the demand. This means that the actual arbitration witnesses and evidence potentially must be in place as early as 30 days after the arbitration date is initially set. The listed documents shall also be made reasonably available for inspection prior to the hearing. I recommend attaching the actual documents to the response. Although Code of Civil Procedure § 1282.2 (a)(2)(E) allows the arbitrator to hear witnesses or receive evidence not listed in the response if he so chooses it is best to carefully list the witnesses and evidence you actually intend to use at the arbitration to eliminate the risk that witnesses and evidence could be excluded. Also, it demonstrates a level of preparation and confidence, and will make the arbitrator’s job that much easier.

It is my opinion that California Rules of Court, Rule 3.823, is a must. Rule 3.823 (b)(1) allows introduction of written reports and other documents without foundation. In most cases, this will allow the parties to “make their case” without a significant expense. With some limited conditions, an arbitrator must receive these documents into evidence, including expert reports, medical records and bills, documentary loss of income, property damage repair bills and estimates, police reports and similar documents. The proponent must deliver these documents to the opposing party at least 20 days before the hearing. The opposing party has the right to subpoena the author or custodian of the document and conduct a cross-examination.

Rule 3.823 (b)(2) also allows a party to introduce witness statements at the arbitration in lieu of a live appearance if they are made under penalty of perjury and have been delivered to the opposing party within 20 days before the hearing. Because of the “penalty of perjury” requirement, counsel should work with the witnesses early on and not rely on a mere letter or handwritten statement that may or may not be signed under penalty of perjury.

Although the opposing party may demand within 10 days that the witness appear in person, such a demand could actually “backfire” because the witness may be more motivated seeing that the opposing party will not accept his or her statement. In addition, the arbitrator may not appreciate the opposing party’s insistence on inconveniencing witnesses and wasting valuable arbitration time for supporting testimony that is essentially undisputed.

Finally, Rule 3.823 (b)(3) allows the use of a deposition transcript without the need to show that the deponent is “unavailable as a witness,” as long as the proponent provides 20 days’ notice of his intention to offer the deposition into evidence. Such notice should be provided for every deposition transcript. In the unlikely case that the deponent fails to appear at the hearing for some reason, it may still be possible to obtain a favorable arbitration award.

Once again, after receiving notice that a deposition transcript will be used, the opposing party has the option to subpoena the deponent in order to cross-examine him or her in person at the arbitration. Once again, the arbitrator may not appreciate the opposing party’s insistence on inconveniencing witnesses and wasting valuable arbitration time for deposition testimony that is essentially undisputed and can be refuted by offering other portions of the deposition in rebuttal.

If counsel make the appropriate agreement at the outset, the Uninsured/Underinsured Motorist arbitration will live up to its potential—providing a prompt and inexpensive resolution of a claim with an insured’s own insurance company.

Results Oriented, Trustworthy and Knowledgeable

I suffered through a not-my-fault auto accident in January of 2010. Unfortunately the opposing insurance company is well known for it’s habitual delays of paying plaintiffs. Barry Goldberg did an excellent job of pursuing Mercury on my behalf until we reached a more than fair settlement. He is fair, knowledgeable, kept me well informed through the months of interaction with opposing Counsel and acheived a great result considering all the circumstances. I would highly recommend him to anyone with a personal injury lawsuit! Should a prospective client wish to speak with me about working with Mr. Goldberg, please contact him for my information.

Car Accident Client

Highly Knowledgeable and Responsive

As an attorney with a legal matter outside my area of expertise, one involving my own family member, I decided to contact Mr. Goldberg after viewing some of his quality legal work. His grasp of the particulars was very impressive, as was his advice in regard to proceeding forward. His speedy and friendly response was refreshing, highlighting an engaged and highly competent professional.

Personal Injury Client

Negotiating a Settlement and Social Media

Really appreciate the legal guidance I received from Mr. Goldberg. I did not feel my insurance company had my best interest in mind and I reached out for legal council. It was clear Mr. Goldberg was an expert not only in personal injury cases but the use of Facebook posts and Tweets as evidence. I will definitely work with Mr. Goldberg again in the future and will recommend him to my family and friends.

Insurance Law Client

I was hit by a SUV while cycling in Santa Monica and was referred to Barry by a cycling friend (who was also a lawyer). Barry and his staff were professional and very easy to work with and negotiated a fair settlement with the drivers insurance company for the damage to my bike and for my medical bills and injuries. Unlike the run-in with the SUV (or going to the dentist), it was about as painless an experience as I could have hoped for.

Cicycle vs. SUVDave, a Car Accident Client

I initially called a different attorney to handle my case. He didn’t file the DMV forms and got my license suspended due to negligence. He also stopped answering the phone for a solid 6-8 months.

One day I began to search for a new attorney and I found Barry. He took over my case, knowing that it was a mess and he would have to put in extra work for free. He immediately took control and got everything in motion. My case was resolved in my favor, faster than I had anticipated.

I was kept up-to-date at all times, even when I didn’t call them. Sarah was sure to update me anytime new info came in. I would recommend Barry to my family. This is a great law office, so there’s no need to continue searching around and worrying who to call. You have found the people you are looking for. They also have a nice office for the times you need to stop by.

Here’s the attorney you have been searching for: Barry GoldbergRyan

I was involved in a car accident about a year ago, t-boned by another car which ran a red light. I found myself with a huge hospital bill, several other bills, a totaled car, phone calls and letters every day, and no one to turn to for help. I attempted to do things on my own, and quickly got in over my head. A friend found Barry’s website, so after a couple months of being stressed and overwhelmed, I gave him a call and we set up a free consultation.

The office is easy to find, very clean and professional. I met Barry and his assistant Sarah, and immediately felt comfortable and relaxed with them. Barry sat and listened and talked with me, giving advice for TWO hours instead of the agreed one hour! He was so genuine, so kind, and truly cared about my situation and wanted to help. A few days later I hired him, and it was the best decision I could’ve made!!!

Barry and Sarah always kept me in the loop with phone calls and emails of progress with my claims. They are persistent and efficient, and have won way more money for me than I could have ever gotten fighting this case on my own! Everything on their end has been fast- responses, updates, issuing checks- and with attention to detail. The only reason it has taken a year to wrap up has been waiting on the hospital/insurance/others to respond to the firm.

A tremendous burden was lifted off my shoulders when I hired this firm, and I am immensely pleased with their service and support!!! SO many thanks to the Goldberg law office!!! I’d recommend them any time 🙂